Niamatullah, Ag. C.J.
1. This and the connected Appeal No. 973 of 1936, arise out of the same suit which was brought by Mt. Umme Khatoon and two of her I full sisters for recovery of their share of i the dower payable to their deceased half sister Mt. Ummatul Habib by the latter's, husband Tufail Ahmad, defendant. Mt. Ummatul Habib died in 1930. The plain, tiffs claim to have inherited from her the right to recover Rs. 3328-2-3 out of the dower of Rs. 5000 which was unpaid on her death. The suit was contested by the defendant. He denied that the dower stipulated at the time of the marriage was Rs. 5000. According to him it was no more than Rs. 500. He also pleaded that Mt. Ummatul Habib had relinquished her claim to dower a few days before her death, so that her heirs had nothing left to inherit. The Court of first instance, the Subordinate Judge of Saharanpur, found that Mt. Habib's dower stipulated at the time of her marriage to the defendant was Rs. 500, and not Rs. 5000 as claimed by the plaintiffs, and that the same had not been relinquished and was due at the time of her death. Accordingly he decreed the plaintiff's suit for Rs. 300 odd. Both the parties appealed in the Court of the District Judge of Saharanpur, who held that the dower stipulated at the time of Mt. Ummatul Habib's marriage to the defendant was Rs. 5000 and not Rs. 500 as found by the first Court and that the same had been relinquished as alleged by the defendant. The plaintiffs put forward, apparently for the first time in appeal, the ground that Mt. Ummatul Habib was suffering from Marz-ul-maut (death illness) at the time when the relinquishment is said to have taken place. The learned Judge found on this point that Mt. Ummatul Habib was suffering from Marz-ul-maut when she relinquished her dower. In the result the learned Judge allowed the plaintiffs' appeal and decreed their claim and dismissed the defendant's appeal. Two appeals have been filed in this Court by the defendant arising out of the two disposed of by the learned District Judge.
2. It is argued on behalf of the defendant that the plea of Marz-ul-maut which was entertained and given effect to by the learned District Judge had not been raised in the pleadings or at any stage before the trial Court. It is also argued that the learned Judge has taken an erroneous view of what Marz-ul-maut is according to Mahomedan law. It is quite correct to say that the point was taken for the first time in appeal. It involves a question of fact and the defendant must have been prejudiced by the plea being taken at a late stage. The judgment of the trial Court does not show that this aspect of the cases was discussed before it. The plaintiffs themselves produced no evidence to show that the lady was suffering from Marz-ul-maut. They relied upon certain passages in the evidence of a lady doctor Mrs. Hughes who had been called by the defendant to prove the relinquishment of the dower. We think that the plea should not have been entertained at that stage.
3. We have referred to the evidence of Mrs. Hughes and in our opinion her evidence, if accepted as true, shows that the lady was not suffering from Marz-ul-maut when she relinquished her dower. According to her there was no apprehension of her death at the time. She had given birth to a child and died suddenly four or five days later of heart failure. The learned Judge refers to this part of Mrs. Hughes' evidence and says:
This may be true medically but it seems obvious that Mt. Ummatul and the appellant thought she was dying. The very fact that a relinquishment was made suggests it.
4. The learned Judge apparently thinks that all that is necessary to establish a case of Marz-ul-maut is that the person in question had some apprehension of death when ha or she disposed of her property, regardless of what the nature of the illness was. This is not a correct view of Mahomedan law. The rule which is stated in Baillie's Mahomedan Law, Part 1, p. 552, Edn. 2, is as follows:
When a sick woman has given her dower to her husband, the gift is valid if she recovers from her illness; and even though she should die of that illness, yet if it were not a death-illness, the answer would be the same, but if it were a death-illness the gift would not be valid without the sanction of the heirs. As to the definition of a death-illness, it has been said, and this is approved for the futwa, that when the illness is such that it is highly probable that death will be the result, it is a death-illness, whether she has taken to her bed or not.
5. Mrs. Hughes' evidence far from establishing these requirements proves that there was no apprehension of the lady's death. The fact that Mt. Ummatul Habib relinquished her dower does not show that she thought that her death was imminent. There were no symptoms which could have led her to entertain an apprehension of death which occurred five days later of sudden heart failure. She thought it prudent to relieve her husband of the-liability to pay dower. All that can be inferred is that she thought that she might possibly die but this does not amount to such apprehension of death as is contemplated by the doctrine of Marz-ul-maut according to Mahomedan law.
6. For these reasons we are clearly of opinion that the relinquishment found as a fact by the learned Judge is valid and; absolves the defendant of liability to pay; to his wife the stipulated amount of dower. In this view, her heirs did not become entitled to recover any part of it from the-defendant. The result is that this and the connected Appeal No. 973 of 1936, are allowed and the plaintiffs' suit is dismissed with costs throughout.